- Submit artwork for
PIELC 2009 posters and t-shirts now! Email submissions to aengel@uoregon.edu, or mail them to 1221
University of Oregon School of Law, Eugene, OR 97403, attn: LAW

-Coming in
mid-January, our website will be updated with more travel, lodging, and
childcare options than ever at www.pielc.org.

-Our confirmed
keynote speakers are:

Katherine Redford – Co-Founder and US Office Director of Earth
Rights International, is a graduate of the University of Virginia School of
Law, where she received the Robert F. Kennedy Award for Human Rights and Public
Service. She is a member of the Massachusetts State Bar and served as counsel
to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing
Green Fellowship in 1995 to establish ERI, and since that time has split her time
between ERI's Thailand and US offices. In addition to working on ERI's
litigation and teaching at the EarthRights Schools, Katie currently serves as
an adjunct professor of law at both UVA and the Washington College of Law at
American University. She has published on various issues associated with human
rights and corporate accountability, in addition to co-authoring ERI reports
such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie
was selected as an Ashoka Global Fellow.

Riki Ott – Experienced firsthand the devastating effects of the Exxon
Valdez oil spill—and chose to do something about it. She retired from fishing,
founded three nonprofit organizations to deal with lingering social, economic,
and harm, and wrote two books about the spill. Sound Truth and Corporate Myths
focuses on the hard science-ecotoxicology, and the new understanding (paradigm
shift) that oil is more toxic than previously thought. Not One Drop describes
the soft science--the sociology of disaster trauma, and the new understanding
that our legal system does not work in cases involving wealthy corporations,
complex science, and class-action. Ott draws on her academic training and
experience to educate, empower, and motivate students and the general public to
address the climate crisis and our energy future through local solutions. Ott
lives Cordova, Alaska, the fishing community most affected by the disaster.

Stephen Stec – Adjunct Professor at Central European University (HU) and
Associate Scholar at Leiden University (NL). As well as the former head
of the Environmental Law Program of the Regional Environmental Center (REC),
Stec is one of the authors of The Aarhus Convention Implementation Guide and
main editor for the Access to Justice Handbook under the Aarhus Convention. The
subject of the Aarhus Convention goes to the heart of the relationship between
people and governments. The Convention is not only an environmental agreement;
it is also a Convention about government accountability, transparency and
responsiveness. The Aarhus Convention grants the public rights and
imposes on parties and public authorities obligations regarding access to
information and public participation and access to justice.

Fernando Ochoa – Legal Advisor for Pronatura Noroeste a
Mexican non-profit organization and the Waterkeeper Program for the Baja
California Peninsula, and founding member and Executive Director for Defensa
Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa
has helped establish more than 60 conservation contracts to protect more than
150 thousand acres of land in Northwest Mexico. As the Executive Director
of DAN, Mr. Ochoa has successfully opposed several development and industrial
projects that threatened ecosystems in the Sea of Cortes and the Baja
California Peninsula, having saved critical habitat for Gray Whales, Whale
Sharks and other endangered species. His work has set important legal
precedents on environmental law in order for local communities to gain participation
in decision making processes, transparency and access to justice.

Claudia Polsky – Deputy Director of the Office of
Pollution Prevention and Green Technology (P2 Office) in California’s
Department of Toxic Substances Control (DTSC). The P2 Office is
central to the implementation of new (2008) legal authority that gives
California expansive ability to regulate toxic chemicals in consumer
products. Instead of focusing on cleanup of past pollution -- the
historic emphasis of DTSC -- the P2 Office looks to the future by
preventing the use of toxic materials in consumer products and industrial
operations. Ms. Polsky's duties include implementing California’s
Green Chemistry Initiative, overseeing hazardous waste source-reduction
programs, and working with staff engineers to evaluate and deploy new
environmental technologies that reduce the need for toxic chemicals.
The Office's work involves interaction with stakeholders as diverse as
electronics manufacturers, breast cancer activists, analytical chemists, and
venture capitalists. Before joining DTSC, Ms. Polsky worked for the
California Department of Justice, Earthjustice, Public Citizen Litigation
Group, and The Nature Conservancy. She holds an undergraduate degree from
Harvard University, and a J.D. from Boalt Hall School of Law, where she was
Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright
Scholar to New Zealand, receiving a Masters of Applied Science in Natural
Resource Management.

Gail Small – The director of Native Action, an environmental justice
organization in Lame Deer, Montana. Small's political engagement in energy
issues began in the early 1970s, when she and other high school students were
sent by the tribal government to visit coal extraction sites on the Navajo
Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed
leases opening the Northern Cheyenne Reservation to strip-mining. Small later
served on a tribal committee that successfully fought for the cancellation of
the BIA coal leases. She received her law degree from the University of Oregon
and formed Native Action in 1984. Her work at Native Action includes
litigation, drafting tribal statutes, and creating informational resources for
tribal members.

DOJ just released the news that ExxonMobil has agreed to pay nearly $6.1 million in civil penalties for violating the terms of a 2005 court-approved Clean Air Act agreement. HT Walter James, Environmental Crimes Blog.

The 2005 settlement already required ExxonMobil to pay a $7.7 million civil penalty, perform an additional $6.7 million in supplemental
environmental projects in communities around the company's refineries,
and install pollution controls at six of its U.S. refineries.

"The Department of Justice will not tolerate violation of our consent
decrees," said Assistant Attorney General Ronald J. Tenpas of the
Justice Department's Environment and Natural Resources Division. "The
significant penalty in this case shows that non-compliance with
settlement requirements will have serious consequences."

"The 2005 settlement has already resulted in major reductions in air
emissions from the company's refineries, but we need full compliance to
realize all the benefits of the settlement," said Granta Y. Nakayama,
assistant administrator for EPA's Office of Enforcement and Compliance
Assurance. "EPA will continue to enforce against companies that fail to
comply with the terms of court-approved settlements."

The agreement penalizes ExxonMobil for failing to comply with
the 2005 settlement at four refineries in Beaumont and Baytown, Texas;
Torrance, Calif.; and Baton Rouge, La. Most of the penalties are for
failure to monitor and control the sulfur content in certain fuel gas
streams burned in refinery furnaces, as required by the 2005 settlement
and EPA regulations. The other two refineries covered under the 2005
settlement are located in Joliet, Ill. and Billings, Mont.

Between approximately 2005 and 2007, ExxonMobil did not monitor the
sulfur content in some fuel gas streams and subsequent testing revealed
sulfur content in excess of EPA limits. The burning of
sulfur-containing gases emits sulfur dioxide, which can cause serious
respiratory problems.

The 2005 settlement and today's penalty settlement with ExxonMobil were
reached as part of a broader EPA initiative to reduce air pollution from
refineries nationwide. To date, 95 refineries located in 28 states,
representing more than 86 percent of the nation's refining capacity,
have been required to install new controls to significantly reduce
emissions.

In a separate action today, EPA and the Justice Department are proposing
amendments to the 2005 settlement that include minor technical changes
and new deadlines for some required activities at ExxonMobil's Joliet,
Billings, and Beaumont and Baytown refineries. The proposed amendments,
filed today with the U.S. District Court in Chicago, are subject to a
30-day public comment period.

Quirin Schiermeier of Nature News reported today Nature link that the UN has suspended the main company that validates
carbon-offset projects in developing countries, "sending shockwaves
through the emissions-trading business." Certified
emission-reduction credits from verified projects are traded and
sold on the carbon emissions market, helping industrialized countries to meet
their emissions-reduction targets under the Kyoto Protocol. However,
only environmentally sustainable projects that would demonstrably not
go ahead without additional revenue from sales of these credits (thus meeting the "additionality" requirement) may be certified.

Det Norske Veritas is the largest verification company, a billion dollar business employing 8000 staff. In the past four years, DNV validated and
certified almost half of the 1,200 projects approved under the CDM. At its November meeting, the CDM's executive board temporarily withdrew
DNV's accreditation after an audit revealed serious flaws in
project management. The CDM board did not specify the projects affected by the problems, but indicated that there were problems with the company's internal auditing
processes and staff qualifications, with at least one staff member who verified CDM
projects without proper sectoral expertise. DNV cannot propose new CDM projects to the UN
for formal approval while suspended. 20–30 projects currently in the
process of validation may be delayed and DNV cannot take new projects as long as the suspension remains in effect. DNV will continue to validate and verify ongoing projects.

CDM projects under way in 51
countries are supposed to save some 250 million tons in
greenhouse-gas emissions. The UN hopes the CDM will abate almost 3 billion tons by the end of 2012,

Go check out the Center for Global Development's 2007 Commitment to Development Index page. Its got some great graphics that you have to see to appreciate. Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9. Center for Global Development Commitment to Development Index

CGD reports:

Norway tops this year’s environment standings. Its net
greenhouse gas emissions fell during 1995–2005, the last ten years for
which data are available, thanks to steady expansion in its forests,
which absorb carbon dioxide. Also high is Ireland, whose economy grew
6.6 percent per year faster in the same period than its greenhouse gas
emissions; and the U.K., which has steadily increased gasoline taxes
and supported wind and other renewable energy sources. Spain finishes
low as a heavy subsidizer of its fishing industry while Japan is hurt
by its high tropical timber imports. The U.S. has not ratified the
Kyoto Protocol, the most serious international effort yet to deal with
climate change. That gap, along with high greenhouse emissions and low
gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar
profile, with the highest per-capita greenhouse gas emissions in the
group.

The
environment component of the CDI compares rich countries on policies
that affect shared global resources such as the atmosphere and oceans.
Rich countries use these resources disproportionately while poor ones
are less equipped to adapt to the consequences, such as global warming.
Countries do well if their greenhouse gas emissions are falling, if
their gas taxes are high, if they do not subsidize the fishing
industry, and if they control imports of illegally cut tropical timber.

A healthy environment is sometimes dismissed as a luxury for the
rich. But people cannot live without a healthy environment. And poor
nations have weaker infrastructures and fewer social services than rich
countries, making the results of climate change all the more damaging.
A study co-authored by CGD senior fellow David Wheeler predicts that a
two-meter sea level rise would flood 90 million people out of their
homes, many of them in the river deltas of Bangladesh, Egypt, and
Vietnam.

The environment component looks at what rich countries are
doing to reduce their disproportionate exploitation of the global
commons. Are they reining in greenhouse gas emissions? How complicit
are they in environmental destruction in developing countries, for
example by importing commodities such as tropical timber? Do they
subsidize fishing fleets that deplete fisheries off the coasts of such
countries as Senegal and India?

The Washington Post reports that the
Solicitor of the Interior Department has shifted half a dozen key political
appointees – including Robert Comer known for his opposition to the roadless
rule and a questionable grazing agreement as well as Matthew McKeown, a mining
industry darling – into senior civil service posts. These transfers, called "burrowing,"
allows political appointees to stay in the government and create obstacles to changing
policy direction. Perhaps the practice should be called "land-mining," given its potential for derailing the peaceful transfer of power:

Between
March 1 and Nov. 3, according to the federal Office
of Personnel Management, the Bush administration allowed 20 political
appointees to become career civil servants. Six political appointees to the
Senior Executive Service, the government's most prestigious and highly paid
employees, have received approval to take career jobs at the same level.
Fourteen other political, or "Schedule C," appointees have also been
approved to take career jobs. One candidate was turned down by OPM and two were
withdrawn by the submitting agency. The
personnel moves come as Bush administration officials are scrambling to cement
in place policy and regulatory initiatives that touch on issues such as federal
drinking-water standards, air quality at national parks, mountaintop mining and
fisheries limits.

Supreme Court nominee: Washington superlawyer Robert Barnett; legal
scholar Cass Sunstein; Massachusetts Gov. Deval Patrick; 2nd U.S. Circuit Court
of Appeals Judge Sonia Sotomayor of New York; Elena Kagan, dean of Harvard Law
School. Consensus is it would most likely be a woman. First nominee has got to be a woman - Kagan is smart and has credibility, but this is a much shorter list than Obama will look at.

Secretary of State: New Mexico Gov. Bill Richardson; Sen. John F. Kerry
(D-Mass.); Sen. Richard Lugar (R-Ind) State is too important to give to a Republican, Kerry's too valuable in the Senate, and Richardson was UN Ambassador so he knows international diplomacy

Environmental Protection Agency administrator: Former Sen. Lincoln Chafee (R-R.I.); Kathleen
McGinty, former head of the Pennsylvania Environmental Protection Agency Again, McGinty is an odds on favorite who knows her stuff

Commerce secretary: Penny Pritzker, Kansas Gov. Kathleen Sebelius, Sen.
Olympia Snowe (R-Maine) Need some Republicans and Olympia Snowe is a liberal one; although she's more valuable in the Senate. So maybe one of the non-environmental positions will go to a Republican and Obama will stick with a Democrat. I'd take Sebelius -- she's articulate and mid-Western.

Secretary of the Interior: Rep. Jay Inslee(D-Wash.), Robert F. Kennedy
Jr.This is the position most likely to go to someone who hasn't been in the running.

Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus." Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry. The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being. Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.

Gallagher's opinion:Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.

Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).

Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.

In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.

Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.

We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.

Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.

It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.

Jeffrey Mervis of ScienceNOW Daily News [link] reported yesterday that next year's federal budget will not contain even one
penny more for scientific research, technology development, and science education if McCain is elected, assuming Congress cannot muster enough votes to override a veto. McCain intends to freeze all discretionary spending for a year to evaluate all programs. Democratic Senator Barack Obama (IL), on the other hand,
proposes doubling the budgets of many U.S. science
agencies over the course of the next decade.

McCain had promised support for R & D in August, but his science aide Brannon said yesterday that there's been no talk within
the campaign of allowing any flexibility in the proposed freeze. It
would be part of McCain's 2010 budget submission next spring to
Congress for the fiscal year that begins in October 2009, should he
defeat Obama in November. "Senator McCain realizes that it's difficult to evaluate the effectiveness of basic research," Brannon told Science. "But the freeze applies to the entire
budget, most of which doesn't relate to science."

For those of you teaching climate change, WRI has a great comparison of the emission reduction targets of various legislative proposals. WRI analysis of US climate legislation targets The World Resources Institute’s analysis of emissions targets and
cumulative emissions budgets attempts to compare on a consistent basis the GHG reductions from explicit carbon caps and
complementary policies contained in climate proposals. Emissions from capped sectors are calculated based on
the text of the respective legislation. For sectors that are not
covered by the legislation, emissions are estimated to continue
uncontrolled in line with projections published by EPA. WRI disclaims: "This analysis is not a projection of actual future emissions
under the various proposals nor is it an analysis of economic impacts
resulting from the enactment of these policies."

U.S. 6th Circuit Court of Appeals, September 03, 2008Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of
district court in favor of defendant Environmental Protection Agency
(EPA) is affirmed in part, reversed in part, vacated in part and
remanded where: 1) with respect to plaintiffs' challenge to the EPA's
approval of Kentucky's categorical exemption of six types of pollution
discharges from Tier II review, though the EPA's decision document
details the tests conducted to measure each exemption's impact, the
document often fails to include the resulting measurements; 2) court
cannot review this legal conclusion's reasonableness without the EPA
first discussing its assimilative-capacity loss estimates and
explaining why it deems them insignificant; 3) EPA's approval of
Kentucky's classification of certain waters as eligible for Tier I
protection rather than Tier II protection was not arbitrary,
capricious, and contrary to law. Case is remanded to EPA so that it may
address the deficiencies in its consideration of ! state's de minimis
exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent
injunction against planting disputed genetically engineered alfalfa
seed pending completion by the U.S. Animal and Plant Health Inspection
Service (APHIS) of an Environmental Impact Statement and deregulation
decision, is affirmed despite the lack of an evidentiary hearing
because the district court performed the traditional balancing test and
the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental
Protection Act violations by the U.S. Coast Guard in establishing
safety zones insulating a private super-ferry from blockade by local
protesters, denial of declaratory judgment is affirmed despite
plaintiff's standing to sue where: 1) the safety zones established by
the Coast Guard did not violate the First Amendment; and 2) the Coast
Guard need not consider the secondary environmental effects of the
super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the
Environmental Protection Agency's statutory duty to object to the
issuance of a Title V operating permit, petition to review EPA decision
is denied where: 1) EPA Administrator's actions fell within the bounds
of his discretion; and 2) a violation notice and civil complaint are
merely initial steps in an enforcement action and do not, by
themselves, inevitably trigger the EPA Administrator's duty to object
under 42 U.S.C. section 7661d(b)(2). Read more...

Today, OSU scientists and other international researchers are publishing an analysis in Nature that runs counter to 40 years of conventional wisdom. Their report suggests that old growth forests are usually "carbon sinks" - they
continue to absorb carbon dioxide from the atmosphere and mitigate
climate change for centuries.

According to the OSU press release:

these old growth
forests around the world are not protected by international treaties
and have been considered of no significance in the national "carbon
budgets" as outlined in the Kyoto Protocol. That perspective was
largely based on findings of a single study from the late 1960s which
had become accepted theory, and scientists now say it needs to be
changed.

"Carbon accounting rules for forests should give
credit for leaving old growth forest intact," researchers from Oregon
State University and several other institutions concluded in their
report. "Much of this carbon, even soil carbon, will move back to the
atmosphere if these forests are disturbed."

The analysis of
519 different plot studies found that about 15 percent of the forest
land in the Northern Hemisphere is unmanaged primary forests with large
amounts of old growth, and that rather than being irrelevant to the
Earth's carbon budget, they may account for as much as 10 percent of
the global net uptake of carbon dioxide.

In forests anywhere
between 15 and 800 years of age, the study said, the net carbon balance
of the forest and soils is usually positive – meaning they absorb more
carbon dioxide than they release.

"If you are concerned about
offsetting greenhouse gas emissions and look at old forests from
nothing more than a carbon perspective, the best thing to do is leave
them alone," said Beverly Law, professor of forest science at OSU and
director of the AmeriFlux network, a group of 90 research sites in
North and Central America that helps to monitor the current global
"budget" of carbon dioxide.

Forests use carbon dioxide as
building blocks for organic molecules and store it in woody tissues,
but that process is not indefinite. In the 1960s, a study using 10
years worth of data from a single plantation suggested that forests 150
or more years old give off as much carbon as they take up from the
atmosphere, and are thus "carbon neutral."

"That's the story
that we all learned for decades in ecology classes," Law said. "But it
was just based on observations in a single study of one type of forest,
and it simply doesn't apply in all cases. The current data now makes it
clear that carbon accumulation can continue in forests that are
centuries old."

When an old growth forest is harvested, Law
said, studies show that there's a new input of carbon to the atmosphere
for about 5-20 years, before the growing young trees begin to absorb
and sequester more carbon than they give off. The creation of new
forests, whether naturally or by humans, is often associated with
disturbance to soil and the previous vegetation, resulting in
decomposition that exceeds for some period the net primary productivity
of re-growth.

Old growth forests, the study said, continue to
sequester carbon for many centuries. And when individual trees die due
to lightning, insects, fungal attack or other causes, there is
generally a second canopy layer waiting in the shade to take over and
maintain productivity.

One implication of the study, Law
said, is that nations with significant amounts of old forests may find
it somewhat easier to offset greenhouse gas emissions if those forests
are left intact. It will also be necessary, she said, for land surface
models that attempt to define carbon balance to better characterize
function of old forests.

Many of the conclusions from the
study were based on data acquired from the AmeriFlux and CarboEurope
programs, researchers said. Multiple funding sources included the U.S.
Department of Energy, CarboEurope, the European Union, and others.
Authors were from institutions in the U.S., Belgium, Germany,
Switzerland, France and the United Kingdom.

The House Select Committee on Energy Independence and Global Warming has sought documents related to the Department of Transportation’s
assertion that California’s rights to issue regulations to reduce
greenhouse gas emissions from motor vehicles using Clean Air Act
authority are preempted by the Energy Policy and Conservation Act. Chairman Ed Markey again asked in August for drafts of the proposed fuel economy rules and the names of individuals involved in the decision to assert that California motor vehicle standards are preempted by the EPCA.

The Select Committee has been investigating the political
influence on the EPA's scientific decisions regarding EPA’s
national vehicle emissions regulations. Markey has indicated that those decisions "were twisted by political forces
from deep within the White House," arguing "It’s
imperative that we now discover if there were similar machinations
within the Department of Transportation trying to shoot down
California’s right to reduce global warming pollution from vehicles."

According to the committee, Chairman
Markey asked in June for documents and information pertaining to the
National Highway Traffic Safety Administration’s (NHTSA’s) Notice of
Proposed Rulemaking (NPRM) on fuel economy standards. The NPRM was
responding to the energy bill passed in December that raised fuel
economy standards to at least 35 miles per gallon by 2020. Chairman
Markey asked about the gas price estimates used for creating fuel
economy targets, and whether those estimates were high enough to
reflect the current and future prices of gas, given the estimates used
in the NPRM were below $3 per gallon.

Chairman Markey also asked
for information pertaining to California’s rights to proceed with its
clean car regulations. The NPRM contained the administration’s view
that state regulations to reduce heat-trapping pollution from motor
vehicles were preempted by national policy. In subsequent exchanges,
when asked for more information on how this decision was reached, and
by whom, NHTSA responded that they would not provide any of the
documents to the Select Committee because the documents were
"pre-decisional." In today's response letter, Chairman Markey notes: "I
am not aware of any court that has recognized ‘pre-decisional’ as an
adequate basis to withhold documents from a valid Congressional
request." The letter further stated that if the agency is relying on a
claim of executive privilege to withhold the documents, then that claim
should be formally asserted.

Along with a request for the
documents themselves, in all forms, Chairman Markey also asks whether
any White House or other executive branch officials assisted in
drafting NHTSA’s NPRM, and lists of any names, dates of any meetings,
conversations, correspondence or any other interactions between NHTSA
and other administration officials.

The letters can be found on the Select Committee website and below:

Chairman Markey’s letter calling on NHTSA to stop stonewalling on its views on the California regulations (8.7.08):

The International Energy Agency (IEA link) cut its estimate for global oil demand today based on the changes Americans are making in their lifestyles in response to high gasoline prices and the recession. North American demand fell 5.3% and 2.9% in July, part of a seven month decline in US demand. This decrease in demand may be exacerated by OPEC's reduced production: 715,000 barrels per day in August and September, reducing OPEC's production ceiling from 32.2 million barrels per day to 28.8 million barrels per day.
This appears to be a response to oil prices failing towards $100 per barrel in August. IEA seemed to be warning OPEC that any attempt to maintain oil prices over $100 per barrel would likely cause long-term changes in behavior and purchasing habits undercutting oil demand in OECD countries and Asian countries, such as Taiwan, Thailand, the Phillipines and Malaysia, are reducing subsidies that have fueled demand. The extent of reduction in demand may depend upon the extent of China's supposed economic slowdown.

Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., No. 06-71891
States' and public interest organizations' petition for review of a
rule issued by the NHTSA setting corporate average fuel economy
tandards for light trucks, including many SUVs and other vehicles, is
granted where: 1) the rule is arbitrary and capricious, contrary to the
Energy Policy and Conservation Act (EPCA) in its failure to monetize
the value of carbon emissions, failure to set a backstop, failure to
close an SUV loophole, and failure to set fuel economy standards for
all vehicles in a particular weight class; and 2) an Environmental
Assessment was inadequate under NEPA and petitioners raised a
substantial question as to whether the rule may have a significant
impact on the environment. (Substituted opinion) Read more...

U.S. 9th Circuit Court of Appeals, August 20, 2008El Comite para el Bienestar de Earlimart v. Warmerdam, No. 06-16000, 06-16131
In a challenge under section 304 of the Clean Air Act (CAA) brought by
a coalition of community organizations against California state
officials responsible for designing and implementing a state air
quality plan, challenging the process by which EPA approval of the plan
was obtained and the final outcome of the approval process, summary
judgment for plaintiff and a remedies order are reversed and vacated
where, because section 304 of the CAA provides jurisdiction only to
enforce an "emission standard or limitation," and because the
challenged conduct did not implicate such a standard or limitation, the
court was without jurisdiction to order a remedy. Read more...

U.S. 11th Circuit Court of Appeals, August 20, 2008James River Ins. Co. v. Ground Down Engineering, Inc. , No. 07-13207
In plaintiff-insurer's claim seeking a declaratory judgment that it is
not obligated to provide a legal defense to defendant-insured,
dismissal of claim is vacated where: 1) district court erred in holding
that the pollution exclusion does not apply; and 2) the pollution
exclusion clearly covers the claims asserted against defendant. Read more...

Dear friends and colleagues,
Here's my video offering called "Hands of God." I am busy taking a course in Communication Theology -- and I'm reading about how 21st century students learn differently and may even have brains structured differently than those of us who are 20th century babies.. Obviously, if you are here, you are somewhat familiar and comfortable with new media. I am just experimenting with how to use YouTube and other new media to communicate with and teach our 21st century digital native students. If you haven't tried this, give it a whirl -- but be forewarned -- a 5 minute video, even one as imperfect as this, is about a 25 hour investment. It may only be worth the effort if the message is really important. That's why I bothered with this one.

The D.C. Circuit denied Sierra Club's petition for mandamus (PDF Mandamus Petition)
in Massachusetts v. EPA with a per curiam decision. (Mandamus Denial PDF)
Judge Tatel wrote a thoughtful opinion concurring that mandamus was not warranted, but dissenting in the Court's decision to deny mandamus, rather than hold the petition in abeyance. He observed that the Court regularly holds the Agency's feet to the fire by requiring regular reports on the Agency's progress on remand. Tatel referenced the shenanigans of the Bush Administration in tabling EPA's proposed regulation.

Sen. Barbara Boxer (D-Calif.) released a substitute global warming bill (PDF) today with significant changes from the version approved last December in the Environment and Public
Works Committee. It includes an $800
billion tax break to help Americans cope with high energy prices,
greater use of international forestry programs and a cost-containment
program that allows extra greenhouse gas emission allowances
to be auctioned off if the price for carbon credits reaches a
certain level.

Some of you may not follow the bouncing ball of global warming legislation, so here's my summary.

The bill caps annual US greenhouse emissions at 5775 million tons in 2012, reducing the cap every year until it reaches 1732 in 2050 -- a 70% reduction from projected 2012 emissions.

Covered facilities are required to obtain allowances for every carbon dioxide equivalent (CDE) of greenhouse gases that they emit

Covered facilities include:

(A) any entity using more than 5,000 metric tons of coal in a year;

(B) natural gas processing plants (except in Alaska)

(C) natural gas producers in Alaska and federal waters within the Alaska OCS;

(F) importers of oil, coke, coal or petroleum based liquids or fuels that cause GHG emissions;

(G) any entity manufacturing more than 10,000 carbon dioxide equivalents of non‐HFC GHG;

(H) importers of more than10,000 carbon dioxide equivalents of non‐HFC greenhouse gas; and

(I) manufacturers of HFCs.

Allowances may be obtained through several means: allocation, regular auctions, cost-containment auctions, domestic offset projects (up to 15% annual US allowances), international offsets and allowances (up to 5% annual US allowances so long as and to the extent that domestic projects are less than 15%).

Covered facilities that fail to secure enough allowances must pay three times (3x) the market value of the allowances that they are short and must provide an equal or greater amount of allowances the next year. They also are subject to enforcement and citizen suits under the Clean Air Act.

An advanced clean fuel efficiency standard is set for fleets at the average 2010 GHG emissions in 2010, reduced to the baseline adjusted for renewable fuels in 2012-2022, reduced to 5% less than baseline by 2023, and finally reduced to 10% less than baseline by 2028.

A carbon duty or tariff is placed on covered goods from countries that do not make a comparable effort to the United States.

An enormous variety of programs are created that either (1) directly allocate allowances to protect the interests of particular groups affected by the cap and trade program or (2) provide for auctions of allowances to create funds for various carbon mitigation and adaptation efforts.

State regulations of GHG are protected by a broad savings clause for state regulation of greenhouse gases: (a) IN GENERAL.—Except as provided in subsection (b), nothing in this Act precludes, diminishes, or abrogates the right of any State to adopt or enforce—
(1) any standard, limitation, prohibition, or cap relating to emissions of greenhouse gas; or
(2) any requirement relating to control, abatement, mitigation, or avoidance of emissions of greenhouse gas.
(b) EXCEPTION.—Notwithstanding subsection (a), no State may adopt a standard, limitation, prohibition, cap, or requirement that is less stringent than the applicable standard, limitation, prohibition, or requirements under this Act.

EPA may authorize tribes to be treated as states for purposes of the Act.

Enforcement will occur through the enforcement and citizen suit provisions of the Clean Air Act.

Judicial review will be largely in accord with the judicial review provisions of the Clean Air Act.

The President is given authority to make an emergency proclamation modifying provisions of the Act for up to 6 months where the President determines that a national security, energy security, or economic security emergency exists, and that it is in the paramount interest of the United States to modify any requirement under this Act to minimize the effects of the emergency.

Here are some of the details about the allocation and funding programs created by the bill:

Allocation programs include:

Carbon intensive manufacturers of iron, steel, pulp, paper, cement, rubber, chemicals,glass,
ceramics, sulfur hexafluoride, or aluminum and other non‐ferrous metals
will be allocated 11% of the annual allowances for the first 10 years,
with the allocation reduced by 1% per year until it reaches 0 in 2030.
EPA may allocate 10% of these allowances to petroleum refiners.

Petroleum refiners also are guaranteed their own allocation of 2%
of annual allowances from 2012-2017 and 1% of annual allowances from
2018-2030.

Power plants will be allocated 18% of the annual allowances in
2012, which will reduce to 2.75% of the annual allowances by 2030.

States heavily dependent on coal and manufacturing will receive 3% of the annual allowances initially, increasing gradually to 4% for 2031-2050

A Renewable Energy Program will be allocated 4% of annual allowances from 2012-2030 and 1% of allowances from 2031-2050.

States that led in reducing emissions, as scored annually according to their historical State investments and achievements in reducing greenhouse‐gas emissions and increasing energy efficiency, will be allocated 4% of the annual allowances in 2012, gradually increasing to 10% for 2032-2050. However, states that have established their own cap-and-trade program.

Celluosic Biofuel producers will allocated 1% of annual allowances in the first 2 years, 3/4 of 1% from 2014-2017, and 1% from 2018-2030.

Allowance funded programs include:

A Climate Change Worker Training and Assistance Fund funded with 1% of annual allowances for 2012-2017, rising to 2% for 2018-2027, 3% for 2028-2030, 4% for 2031-2019, and dropping to 3% for 2039-2050.

A Consumer Assistance Fund will initially be allocated 3.5% of the annual allowances for auction, increasing gradually to 15% from 2035-2050.

A Transportation Emission Reduction Fund will initially be allocated 1% of the annual allowances for auction, increasing to 2.75% between 2022-2050.

A Energy Efficiency and Conservation Block Grant Program will be allocated 2% of the annual allowances for auction.

An Efficient Energy Use Program will auction 2.25% of annual allowances to reward efficient buildings, efficient equipment, and efficient manufacturing (divided equally).

A Zero or Low Carbon Generation Technology Fund will provide incentives for manufacturers by auctioning 1.75% of annual allowances 2012-2021, 2% 2022-2030, and 1% 2031-2050. Advanced research into such technologies will be funded from auctions of .25% of annual allowances over the entire period.

A Carbon Sequestration and Storage Early Deployment Program will provide financial support for early CSS projects through a "Kick-Start" Program, funded by auctioning 1% of annual allowances from 2012-2025. Long-term incentives will be created by allocating 3% of allowances to those projects from 2012-2025, 4% from 2026-2030, dropping to 1% from 2031-2050. Bonus allowances will also be made available, starting at 2% in 2012 and gradually dropping to 1/2 of 1% in 2050. The legislation sets the following performance standards to qualify for allowances: (1) Existing units that commence operation of CCS equipment in 2015 or
earlier must treat at least the amount of
flue gas equivalent to 100 MW of output and meet a 85% capture and sequester
standard; (2) Existing units that commence operation of
CCS equipment after 2016 must achieve an
average annual emissions rate of not more than 1,200 pounds of CO2/MWH; (3) New units for which construction of the
unit commenced prior to July 1, 2018 must achieve an average annual emissions rate of not more than 800 pounds of
CO2/MWH; (4) New units commenced on or after July 1,
2018 must achieve an average annual emissions rate of not more than 350 pounds of CO2/MWH; (5) Units at covered facilities that are not
electric generation units must achieve a 85% average annual capture standard.

The bill also contains a variety of provisions necessary to create sequestration capacity.

Commercial fleet owners who purchase clean hybrid vehicles will be rewarded from 2012-2017 through an auction of 1/2 of 1% of annual allowances

A Federal Natural Resources program will fund federal lands firefighting efforts and implementation of a Federal Wildlife Adaption Strategy with funds from auctioning 3% of allowances in 2012, 2.5% from 2013-2022, 3% from 2023-2024, 4% from 2025-2031, and 5% from 2032-2050.

International efforts will be funded also through 1% for forestry capacity building, 1/2 of 1% for clean development technology deployment, and most significantly 1% in 2012 gradually rising to 7% in 2039-2050 for international climate change adaptation efforts.

Last, but decidedly not least, reduction of the federal deficit will be funded by 5.75% of allowances in 2012, rising gradually to 19.75% in 2031, dropping to 17.75% for 2032-33, and stabilizing at 16.75% for 2034-2050.

Like local data to pique your students' interest??? Want to know the facilities that you should target to make big gains in CO2 reduction??? Project Vulcan has made its complete database available -- and it produces cool maps like the one to the left. 2002 CO2 Inventory DataSmall databases with state by state and county by county inventories for 8 sectors are also available. Enjoy!

An example of what a student might do: I looked at the Oregon inventory regarding mobile emissions. It turns out that 75% of Oregon's emissions come from 15 of its 35 counties. Vulcan_2002_oregon_co2_inventory.xls
Since most of those are counties where urbanites support measures to control CO2, it might be possible to design a state program to reduce vehicle miles traveled in just those 15 counties -- and garner the support of rural legislators. The idea is obvious -- but here are the numbers to prove it.

An example of the data available on a county by county basis is this Oregon

It is quite fashionable for American politicians and pundits to suggest that somehow the United States has a unique role in spreading the rule of law throughout the world. The response of the Bush administration to the Supreme Court's decision certainly calls into question the United States' qualifications as an epitome of diligent observance of the rule of law. Almost one year ago, the Supreme Court held that EPA's denial of the petition was arbitrary
and capricious and remanded the case for further proceedings consistent
with its opinion. It concluded, as it always does, "It is so ordered." EPA dutifully prepared an "endangerment" finding on the petition and forwarded it for White House review. The White House is simply sitting on the finding, now suggesting that somehow the new CAFE rules excuse it from complying with the Court's mandate. And now EPA has been forced to dodge and weave in oversight hearings on the Hill and decline to provide documents to Congress concerning its response. Even if one does not regard the Bush administration's current attempt to avoid the clear import of the Supreme Court's decision as blatantly illegal or unconstitutional, the interplay between EPA, the White House, and Congress in the past year in response to the Supreme Court should be required reading for any student of law or government.

If you're interested in raising the issue, you might start with:Massachusetts v. EPA decision (the most relevant excerpt is posted below)House Oversight Committee's letter to EPA's Administrator Steve JohnsonHearing held by House Select Committee on Global Warming

EPA has refused to provide the documents that would establish the role of the White House and EPA's political management in drafting the endangerment finding required to comply with the Supreme Court's decision. e-NewsUSA Report on EPA Refusal